{"id":62362,"date":"2007-04-10T00:00:00","date_gmt":"2007-04-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-rajesh-vs-assistant-excise-commissioner-on-10-april-2007"},"modified":"2019-02-02T07:57:18","modified_gmt":"2019-02-02T02:27:18","slug":"h-rajesh-vs-assistant-excise-commissioner-on-10-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-rajesh-vs-assistant-excise-commissioner-on-10-april-2007","title":{"rendered":"H.Rajesh vs Assistant Excise Commissioner on 10 April, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
H.Rajesh vs Assistant Excise Commissioner on 10 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 31267 of 2004(V)\n\n\n1. H.RAJESH, 'SIVADAM', CHEVAYUR P.O.,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. ASSISTANT EXCISE COMMISSIONER,\n                       ...       Respondent\n\n2. KERALA PUBLIC SERVICE COMMISSION,\n\n3. DISTRICT OFFICER, KERALA PUBLIC\n\n                For Petitioner  :SRI.S.P.ARAVINDAKSHAN PILLAY\n\n                For Respondent  :SRI.P.C.SASIDHARAN, SC, KPSC\n\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :10\/04\/2007\n\n O R D E R\n                         T.R. Ramachandran Nair, J.\n\n                      -  - - -  - - - - - - - - - - - - - - - - - - - -\n\n                        W.P.(C).NO.31267 of 2004-V\n\n                      - - - - -- - - - - - - - - - - - - - - - - - - - -\n\n                  Dated this  the  10th  day of April, 2007\n\n\n                                    JUDGMENT\n<\/pre>\n
       The petitioner approached this court aggrieved by the   non-reporting<\/p>\n
of   existing   vacancies   of   Excise   Guards   in   Wayanad   District,   during   the<\/p>\n
currency of Ext.P1 rank  list.    The  rank list  for appointment  to the  post  of<\/p>\n
Excise   Guards   was   published   as   per   Ext.P1   by   the   Public   Service<\/p>\n
Commission on 29.10.2001.  The list expired on 31.12.2004.  The petitioner<\/p>\n
is rank No.68 in the main list.\n<\/p>\n<\/p>\n
       2.  The petitioner points out in the writ petition that the cadre strength<\/p>\n
of Excise Guards in Wayanad District is 87 and since the existing number of<\/p>\n
such Guards is only 74, there were 13 vacancies to be reported.  This court<\/p>\n
on 26.10.2004 by way of an interim order, directed the first respondent to<\/p>\n
report   all   the   vacancies   in   the   post   of   Excise   Guard   in   the   Excise<\/p>\n
Department in Wayanad Division to the third respondent within three weeks<\/p>\n
from that date.  Thereafter, the first respondent filed a statement as directed<\/p>\n
by   this   court   wherein   the   vacancy   position   was   shown   as   14.     In   the<\/p>\n
statement it was also averred that out of the 14 vacant posts, six posts are<\/p>\n
exclusively reserved for special recruitment of SC\/ST candidates which are<\/p>\n
WPC 31267\/2004                                  2<\/span><\/p>\n
already   reported   to   the   Public   Service   Commission,   two   posts   are<\/p>\n
exclusively   reserved   for   the   posting   of   candidates   in   compassionate<\/p>\n
employment scheme and one post is kept vacant as per interim order dated<\/p>\n
5.8.2002 in O.P. No.22210\/2002.  The balance five vacancies were reported<\/p>\n
to the Public Service Commission on 12.10.2004 and the District Office has<\/p>\n
advised five candidates as per letter No.WR.II(3)\/493\/91 dated 27.10.2004<\/p>\n
and posting  orders to these candidates will be issued shortly.<\/p>\n
        3. The petitioner thereafter filed I.A. No.16698\/2004 for a direction to<\/p>\n
report   14   vacancies   to   the   Public   Service   Commission.     The   apparent<\/p>\n
contention   taken   in   the   affidavit   is   that   even   if   vacancies   have   been   ear-<\/p>\n
marked   for   special   recruitment   and   appointment   under   the   compassionate<\/p>\n
employment   scheme,   vacancies   need   not   be   reserved   anticipating   their<\/p>\n
appointment.     When   the   above   I.A.   came   up   for   hearing   on   3.12.2004,   a<\/p>\n
learned single judge of this court passed the following order:<\/p>\n
         “In   continuation   of   the   interim   order   passed   on   26.10.2004,   there<\/p>\n
         shall   be   a   further   direction   to   R1   to   report   14   vacancies  of   Excise<\/p>\n
         Guards in Wayanad Division to PSC.  This shall be done within two<\/p>\n
         weeks from today.  Candidates need not be advised from the rank list<\/p>\n
         against the vacancies ordered to be reported without getting further<\/p>\n
         orders from this court.\n<\/p><\/blockquote>\n
                 Post on 20.12.2004 for reporting compliance.”<\/p><\/blockquote>\n
        4.     Thereafter,   the   petitioner   filed   I.A.   No.14626\/2005   praying   to<\/p>\n
issue   a   direction   to   the   first   respondent   to   reserve   8   vacancies   of   Excise<\/p>\n
Guard   which   arose   after   31.12.2004   for   appointing     special   recruits   and<\/p>\n
WPC 31267\/2004                                3<\/span><\/p>\n
candidates     appointed   under   compassionate   employment   scheme   and   take<\/p>\n
steps to fill up the 8 vacancies that arose prior to 31.12.2004 by appointing<\/p>\n
candidates from Ext.P1 list.  In paragraph 8 of the affidavit filed in support<\/p>\n
of the I.A., it was mainly contended that as there are enough vacancies  to<\/p>\n
accommodate   special   recruits   and   candidates   to   be   appointed   under   the<\/p>\n
compassionate   employment   scheme,   there   is   no   necessity   to   continue   the<\/p>\n
reservation   for   them  against   the   vacancies   that   arose   prior   to   31.12.2004.<\/p>\n
When the I.A. came up for hearing, this court passed an order directing the<\/p>\n
first respondent to file a counter affidavit in relation to the averments made<\/p>\n
in   the   affidavit.     Accordingly,   the   first   respondent   has   filed   a     counter<\/p>\n
affidavit on 6.12.2005.  Subsequently, on 24.5.2006 the following order has<\/p>\n
been passed in I.A. No.14626\/2005:\n<\/p>\n<\/p>\n
           “Heard.\n<\/p><\/blockquote>\n
             It is not  in dispute that one vacancy of Excise Guard is available<\/p>\n
           for filling up with PSC hand.  Accordingly, the third respondent is<\/p>\n
           directed to advise a candidate to one of the vacancies reported as<\/p>\n
           per the interim orders of this court.  The claim of the petitioner for<\/p>\n
           advise   to   additional   vacancies   shall   be   considered   at   the   time   of<\/p>\n
           final hearing.  Post for hearing after two weeks.  It is clarified that<\/p>\n
           this   interim   order   will   not   stand   in   the   way   of   appointing<\/p>\n
           candidates under the dying in harness or who are recruited as per<\/p>\n
           special recruitment for SC\/ST.”<\/p><\/blockquote>\n
       5.     The   Public   Service   Commission   has     filed   a   counter   affidavit<\/p>\n
wherein it is stated  that the  petitioner was not advised as his turn for advice<\/p>\n
did   not   arise  and   as   far  as   open  category   candidates   are  concerned,    only<\/p>\n
WPC 31267\/2004                                4<\/span><\/p>\n
upto rank No.57 were advised for appointment.\n<\/p>\n<\/p>\n
       6.     When   the   case   came   up   for   hearing   on   14.2.2007,   the   learned<\/p>\n
counsel   for   the   petitioner   argued   for   the   position   that   going   by   the<\/p>\n
averments in the counter affidavit filed by the first respondent, there can be<\/p>\n
a  direction  to  advise  candidates  from the rank  list  as  it  will  not  affect  the<\/p>\n
rights   of   candidates   appointed   through   special   recruitment   and   under   the<\/p>\n
dying   in   harness   scheme.    Since   the   details   of   the   vacancy   position   from<\/p>\n
29.10.2001 till 31.12.2004 and the vacancies which exist as on today which<\/p>\n
arose after 31.12.2004  were required to be made available, this court passed<\/p>\n
an interim order on 14.2.2007 directing the first respondent to furnish those<\/p>\n
details     by   way   of   an   affidavit.     On   26.2.2007   on   behalf   of   the   first<\/p>\n
respondent,   an   additional   affidavit   has   been   filed   stating   various   details<\/p>\n
regarding   the   vacancy   position   covering   the   above   periods   and   also<\/p>\n
producing   various   orders   of   appointments.     A   reading   of   the   affidavit<\/p>\n
reveals the following facts:\n<\/p>\n<\/p>\n
       7.   As   on   29.10.2001,   the   number   of   vacancies   in   the   category   of<\/p>\n
Excise Guards in the Division was 52 and out of these vacancies, five were<\/p>\n
set apart for special recruitment and were thus reported to the Public Service<\/p>\n
Commission.     The   remaining   47   vacancies   were   filled   up   by   direct<\/p>\n
recruitment.     These   appointments   were   made   as   per   Ext.R1(a)   dated<\/p>\n
19.11.2001.  Ext.R1(b) is the order by which five vacancies have been filled<\/p>\n
WPC 31267\/2004                                  5<\/span><\/p>\n
up  by   way   of   special   recruitment   on   21.10.2005.     It   is   further   stated   that<\/p>\n
from 30.10.2001  to   31.12.2004,   35   vacancies  of   Excise   Guards  arose  and<\/p>\n
out   of   these,   three   vacancies   were   filled   up   resorting   to   compassionate<\/p>\n
appointment   which   were   made   on   22.3.2004,   19.5.2004   and   20.7.2004<\/p>\n
respectively   (Exts.R1(c),   R1(d)   and   R1(e)).     Out   of   the   remaining   32<\/p>\n
vacancies,  on  18.4.2002  17 vacancies  were filled  up  by direct  recruitment<\/p>\n
(Ext.R1(f).     Out   of   these,   four   vacancies   were   N.J.D.  vacancies   of   earlier<\/p>\n
period   and   the   remaining   13   vacancies   were   vacancies   which   arose   from<\/p>\n
30.10.2001 t0 31.12.2004.  Out of the 17 vacancies filled up on 18.4.2002,<\/p>\n
one N.J.D. vacancy arose which was filled up on 4.11.2003.   Thus, all the<\/p>\n
35   vacancies   which   arose   between   30.10.2001   to   31.12.2004   have   been<\/p>\n
filled up as pointed out earlier.   From 1.1.2005  to 22.2.2007 31 vacancies<\/p>\n
arose and one special recruitment was effected on 20.3.2006 as per Ext.R1<\/p>\n
(k) order.   It is stated that 30 vacancies which arose after 31.12.2004, after<\/p>\n
the expiry of the rank list, are pending to be filled up.\n<\/p>\n<\/p>\n
        8.   Shri S.P. Aravindakshan Pillai, learned counsel for the petitioner<\/p>\n
argued   that   as   far   as   the   stand   taken   by   the   first   respondent   that   six<\/p>\n
vacancies  have been    reserved  for special  recruitment  under  Rule 17-A of<\/p>\n
K.S.   &   S.S.R.   and     three   vacancies   for   appointment   under   the<\/p>\n
compassionate employment scheme is concerned, as a matter of fact, those<\/p>\n
vacancies have been filled up only at a later point of time and therefore in<\/p>\n
WPC 31267\/2004                                 6<\/span><\/p>\n
respect of those 9 vacancies which arose prior to 31.12.2004, the candidates<\/p>\n
included in Ext.P1 rank list ought to have been advised.   Learned counsel<\/p>\n
pointed  out   that  the   word  “reserved”  has   no   special   significance  as  far   as<\/p>\n
special   recruitment   and   appointment   under   compassionate   employment<\/p>\n
scheme are concerned; there is no actual reservation as such and it is only to<\/p>\n
be   ensured   that  at   the   time   of  appointment   there  are  sufficient   number  of<\/p>\n
vacancies   to   appoint   such   candidates.     It   is   therefore  argued   that   the   said<\/p>\n
method of appointment made at a later point of time cannot militate against<\/p>\n
the   rights   of   candidates   to   be     advised     in   the   9   vacancies   which   were<\/p>\n
reported   pursuant   to   the   interim   order   passed   by   this   court   prior   to<\/p>\n
31.12.2004.\n<\/p>\n<\/p>\n
       9.     In   reply,   Shri   P.C.   Sasidharan,   learned   counsel   for   the   Public<\/p>\n
Service Commission and the learned Govt. Pleader pointed out that as far as<\/p>\n
reservation   for   special   recruitment   is   concerned,   those   vacancies   were<\/p>\n
actually reserved for them and hence they are not available for appointment<\/p>\n
from Ext.P1 rank list.  This is so in the case of appointment under the dying<\/p>\n
in  harness  scheme.   Mr. Sasidharan  also  pointed  out that if petitioner  and<\/p>\n
other  8 candidates  are directed  to be  advised,  it will  be only in  respect of<\/p>\n
vacancies  which   arose   after  31.12.2004   which  cannot  be  done   and  at   any<\/p>\n
rate, those vacancies  shall be filled  up only by way of a fresh  recruitment<\/p>\n
and if any such   directions are issued, that will affect the rights of persons<\/p>\n
WPC 31267\/2004                               7<\/span><\/p>\n
who   are   expecting   a   fresh   selection.     He   also   relied   upon   the   decision<\/p>\n
reported in Jayachandran v. State of Kerala & others<\/a> (1984 KLN 102).<\/p>\n
       10.     Therefore,   the   effect   of   Rule   17-A   mainly   arises   for<\/p>\n
consideration.   The said  rule  provides  for special  recruitment  from among<\/p>\n
the Scheduled Castes and Scheduled Tribes.  The rule reads as follows:<\/p>\n
         “17-A.   Special   recruitment   from   among   the   Scheduled   Castes<\/p>\n
         and   Scheduled   Tribes.-    Notwithstanding   anything   contained   in<\/p>\n
         these rules or in the special rules, the State Government may reserve<\/p>\n
         a specified number of posts in any service, class, category or grade<\/p>\n
         to   be   filled   by   direct     recruitment   exclusively   from   among   the<\/p>\n
         members of Scheduled Castes and Scheduled Tribes.”<\/p>\n<\/blockquote>\n
The   Rule   specifically   provides   that   the   State   Government   may  “reserve   a<\/p>\n
specified number of posts, to be filled up by direct recruitment exclusively<\/p>\n
from   among   the   members   of     Scheduled   Castes   and   Scheduled   Tribes.”<\/p>\n
This rule, as held by this court in various decisions, confers power to fill up<\/p>\n
posts   by       making   special   recruitment     which   is   separate   from   and<\/p>\n
independent of the power available  under Rule 14 of the K.S. & S.S.R.  It<\/p>\n
is supplementary to  the provisions in Rule 14. (State of Kerala v. Sivadas<\/a><\/p>\n
–  1979 KLT 678.)   Later, a Full Bench of this court in  State of Kerala v.<\/p>\n
Sreekantan<\/a> (1993 (1) KLT 107) held as follows:\n<\/p>\n<\/p>\n
        “The   wording   of   the   Rule   is   categoric   that   a   specified   number   of<\/p>\n
        posts in any service, class, category or grade shall be reserved to be<\/p>\n
        filled by direct recruitment exclusively from among the members of<\/p>\n
        the   Scheduled   Castes   and   Scheduled   Tribes.     the   Rule   further<\/p>\n
        provides   that   the   above   reservation   is   notwithstanding   anything<\/p>\n
        contained in the KSSR or  in the Special Rules.  The fact that special<\/p>\n
WPC 31267\/2004                              8<\/span><\/p>\n
      recruitment   can   be   made   from   among   the   Scheduled   Castes   and<\/p>\n
      Scheduled   Tribes   notwithstanding   anything   contained   in   the<\/p>\n
      Subordinate   Service  Rules  or   the  Special  Rules   makes   it   clear  that<\/p>\n
      the direct recruitment contemplated under Rule 17A of the KSSR  is<\/p>\n
      to  be   made  outside   the   purview   of   the   provisions   contained   in   the<\/p>\n
      Subordinate Service Rules and the Special Rules.   It is de hors and<\/p>\n
      independent   of   the   Special   Rules.     Though   in   common   parlance<\/p>\n
      special recruitment under R.17A is also a direct recruitment, it is not<\/p>\n
      a   recruitment   as   contemplated   under   the   Special   Rules.     Special<\/p>\n
      recruitment is confined to a category of persons, namely from among<\/p>\n
      the   members  of   the  Scheduled   Castes  and   Scheduled  Tribes   alone.<\/p>\n
      The direct recruitment contemplated under the Special Rules is from<\/p>\n
      the open market and it is not confined to any particular section of the<\/p>\n
      public   but   from   among   the   general   public   as   a   whole,   though   no<\/p>\n
      doubt, reservation has to be made as provided for under Rules 14 to<\/p>\n<\/blockquote>\n
      17.     The   direct   recruitment   under   Rule   17A   differs   from   a   direct<\/p>\n
      recruitment   under   the   Special   Rules,   for   the   former   is   confined   to<\/p>\n
      Scheduled  Castes  and  Scheduled  Tribes   alone  whereas  the  latter  is<\/p>\n
      open to all people.  It is in independent recruitment not governed by<\/p>\n
      the   provisions   of   the   Special   Rules   but   to   be   made   in   accordance<\/p>\n
      with   R.17A.   Even   in   cases   where   the   appointment   is   to   be   made<\/p>\n
      solely by transfer or by promotion alone under the Special Rules, the<\/p>\n
      State Government is entitled to reserve a specified number of posts<\/p>\n
      to be filled by special recruitment from among the Scheduled Castes<\/p>\n
      and Scheduled Tribes under R.17A.   This also is an indication  that<\/p>\n
      the special recruitment under Rule 17A is not an appointment under<\/p>\n
      the   Special   Rules,   but   outside   the   same.   The   fact   that   for   direct<\/p>\n
      recruitment under the Special Rules a specified number of posts shall<\/p>\n
      be   filled   by   candidates   belonging   to   the   Scheduled   Castes   and<\/p>\n
      Scheduled Tribes under Rules 14 to 17 will not make any difference,<\/p>\n
      for Rule  17A  is  an  additional  provision  for   giving  appointment  to<\/p>\n
      the members of the Scheduled Castes and Scheduled Tribes.  In that<\/p>\n
      view of the matter, even though special recruitment under R.17A is<\/p>\n
      also by way of direct recruitment, it is distinct and different from the<\/p>\n
      direct   recruitment   contemplated   under   the   Special   Rules   and   such<\/p>\n
      special recruitment cannot be taken into account in fixing the quota<\/p>\n
      of   direct   recruits   as   fixed   under   the   Special   Rules.     Special<\/p>\n
      recruitment under R.17A has to be treated as a  separate category of<\/p>\n
      direct   recruits   and   it   will   be   unfair   to   accommodate   such   special<\/p>\n
      recruits  exclusively in the quota earmarked for  direct recruits.   The<\/p>\n
      number  of   special   recruits   will   have   to   be   deducted   from   the   total<\/p>\n
WPC 31267\/2004                                  9<\/span><\/p>\n
         number of vacancies and the ratio prescribed for direct recruits and<\/p>\n
         promo   tees   under   the   Special   Rules   has   to   be   applied   for   the<\/p>\n
         remaining posts. Recruits under the Sports Quota or under the dying<\/p>\n
         in harness scheme also stand on the same footing and such posts also<\/p>\n
         cannot  be  taken  into account  in fixing the  quota available  to direct<\/p>\n
         recruits under the Special Rules.  The special recruitment under Rule<\/p>\n
         17-A,   appointment   under   Sports   Quota   and   appointment   under   the<\/p>\n
         Dying-in-Harness   Scheme   stand   outside   the   Special   Rues.     To<\/p>\n
         determine     the   number   of   posts   available   for   direct   recruits   and<\/p>\n
         promotees\/transferees under the Special Rules, the number of special<\/p>\n
         recruits under the aforesaid three categories will have to be excluded<\/p>\n
         and the ratio applied for the remaining posts.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
Therefore,  going  by the  above  dictum, the  number  of special  recruits  will<\/p>\n
have to be deducted from the total number of posts so as to determine the<\/p>\n
number of posts available for direct recruitment.   The said principle applies<\/p>\n
for   appointment   under   the   dying   in   harness   scheme   and   also   under   the<\/p>\n
sports quota which also stands outside the special rules.<\/p>\n
        11. It is evident from the statement and the affidavits filed by the first<\/p>\n
respondent that six posts were exclusively reserved for special recruitment<\/p>\n
of Scheduled Castes and Scheduled Tribes candidates which were “already<\/p>\n
reported to the Public Service Commission” and two posts are exclusively<\/p>\n
reserved   for   posting   of   candidates   under   the   compassionate   employment<\/p>\n
scheme.  It is clear from the statement filed on 18.12.2004 that even though<\/p>\n
there were 14 vacancies, five vacancies have been filled up on 27.10.2004<\/p>\n
from  the  rank  list   Ext.P1   itself.    Therefore,  the  remaining   vacancies  were<\/p>\n
only   9.     It   is   evident   from   the   affidavit   filed   on   26.2.2007   that   as   on<\/p>\n
WPC 31267\/2004                                   10<\/span><\/p>\n
29.10.2001, i.e.  the date of Ext.P1 rank list, the number of vacancies were<\/p>\n
52 and out of which, five were set apart for special recruitment and reported<\/p>\n
to   the   Public   Service   Commission.     Evidently   one   more   was   reported   for<\/p>\n
special recruitment making the total to 6. The petitioner has no contention<\/p>\n
that the reservation  of six  vacancies  for special  recruitment for  Scheduled<\/p>\n
Castes   and   Scheduled   Tribes   breaches   the   percentage   of   reservation<\/p>\n
provided in the rules.  Therefore, going by the data available, 79 vacancies<\/p>\n
were filled up from the rank list between 29.10.2001 and 31.12.2004.   The<\/p>\n
special recruitment has been made only in respect of six vacancies from the<\/p>\n
category of Scheduled Castes and Scheduled Tribes.  Therefore, at any rate,<\/p>\n
it cannot be contended that the percentage of reservation has been exceeded<\/p>\n
at   any  point   of   time.     The   petitioner   can   succeed   only  if   it   is   shown   that<\/p>\n
either at the time of reservation of six vacancies for special recruitment of<\/p>\n
Scheduled    Castes and Scheduled Tribes plus  2 vacancies  for appointment<\/p>\n
under   the   compassionate   employment   scheme   or   at   the   time   when   the<\/p>\n
beneficiaries   of   such   reservation   were   appointed,   the   percentage   of<\/p>\n
reservation has been exceeded going by the total number of vacancies or by<\/p>\n
the   cadre   strength   of   Excise   Guards   in   the   District.     Since   the   petitioner<\/p>\n
could not point out any breach of such percentage of reservation provided<\/p>\n
under Rule  14 of K.S. & S.S.R. either at the time of making the reservation<\/p>\n
or   at   the   time   of   appointment   of   such   candidates,   there   cannot   be   any<\/p>\n
WPC 31267\/2004                                    11<\/span><\/p>\n
transfer  of vacancies  in  favour  of persons  included  in Ext.P1  rank  list    to<\/p>\n
accommodate   them.     Even   though   in   the   decision   reported   in  Babu   v.<\/p>\n
Poulose  (2003   (2)   LT   428)   a   Division   Bench   of   this   court   held   that   the<\/p>\n
point of time the percentage has to be seen is the date of appointment and<\/p>\n
not   on   the   date   on   which   requisition   is   made   to   the   Public   Service<\/p>\n
Commission, it makes no difference here.\n<\/p>\n<\/p>\n
        12.   The   vacancies   presently   existing   are   which   arose   after<\/p>\n
31.12.2004.  It is evident that the persons appointed under Rule 17-A  under<\/p>\n
SC\/ST   categories   and   persons   who   were   appointed   under   compassionate<\/p>\n
employment   scheme,   were   appointed   in     vacancies   which   arose   prior   to<\/p>\n
31.12.2004.  Unless by any legally known method such vacancies are liable<\/p>\n
to be counted for direct recruitment from Ext.P1 rank list,  no direction can<\/p>\n
be   issued   to  advise   candidates  from Ext.P1  list   as  admittedly  the   existing<\/p>\n
vacancies arose after the expiry of the rank list going by the affidavit filed<\/p>\n
by   the   first   respondent.     It   is   true   that   as   argued   by   the   counsel   for   the<\/p>\n
petitioner, candidates could be directed to be advised from Ext.P1 to those<\/p>\n
nine   vacancies   even   without   disturbing   the   appointees   under   the   special<\/p>\n
recruitment scheme and under the dying in harness scheme.   But since the<\/p>\n
first   respondent   has   taken   a   definite   stand   that   those   nine   persons   were<\/p>\n
appointed   in   vacancies   reserved   for   them   prior   to   31.12.2004,   no   further<\/p>\n
vacancies   are   available   to   advise   candidates   from   Ext.P1   prior   to<\/p>\n
WPC 31267\/2004                                12<\/span><\/p>\n
31.12.2004.     In   1984   KLN   102,   it   was   held   in   paragraph   14   that   direct<\/p>\n
recruits are entitled only to the posts available to them under the rules.<\/p>\n
       13. Counsel for the Public Service Commission invited my attention<\/p>\n
to Rule 2(12) of the definition clause in the K.S. & S.S.R. to point out that a<\/p>\n
candidate is said to be  “recruited direct” to a service, class, category or post<\/p>\n
when,   in   case   the   appointment   has   to   be   done   in   consultation   with   the<\/p>\n
Commission,   on   the   date   of   the   notification   by   the   Commission   inviting<\/p>\n
applications   for   the   recruitment,   and   in   any   other   case,   at   the   time   of<\/p>\n
appointment.  It is therefore contended that reservation of posts under Rule<\/p>\n
17-A has to be considered at the point of time when the Commission invited<\/p>\n
applications   for   recruitment   and   not   at   the   time   of   their   appointment.<\/p>\n
Counsel for the petitioner disputed this   position.   Any way, in the light of<\/p>\n
the  view that I have taken  in the matter, it is not   necessary to decide  the<\/p>\n
scope of the said rule here.  Rule 17-A clearly empowers the Government to<\/p>\n
reserve   a   specified   number   of   posts     “to   be   filled   up   by   members   of<\/p>\n
Scheduled   Castes   and   Scheduled   Tribes”   and     in   this   case   also     such<\/p>\n
reservation   was   made   and   they   were   reported   to   the   Public   Service<\/p>\n
Commission.     Since   there   is   no   breach   of   the   percentage   of   reservation<\/p>\n
provided in favour of Scheduled Castes and Scheduled Tribes in Rule 14(c)<\/p>\n
of  the  Rules,    according  to  me,   the  petitioner  cannot  seek  for  transfer  of<\/p>\n
vacancies so as to accommodate candidates from the ranked list Ext.P1.<\/p>\n
WPC 31267\/2004                              13<\/span><\/p>\n
        Therefore,   the   writ  petition  fails  and   the   same  is  dismissed   without<\/p>\n
any order as to costs.\n<\/p>\n<\/p>\n
                                            (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court H.Rajesh vs Assistant Excise Commissioner on 10 April, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 31267 of 2004(V) 1. H.RAJESH, ‘SIVADAM’, CHEVAYUR P.O., … Petitioner Vs 1. ASSISTANT EXCISE COMMISSIONER, … Respondent 2. KERALA PUBLIC SERVICE COMMISSION, 3. DISTRICT OFFICER, KERALA PUBLIC For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY For Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-62362","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nH.Rajesh vs Assistant Excise Commissioner on 10 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/h-rajesh-vs-assistant-excise-commissioner-on-10-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"H.Rajesh vs Assistant Excise Commissioner on 10 April, 2007 - 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